Citation Nr: 21040254 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-01 621 DATE: July 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for the period on appeal prior to December 17, 2019, and in excess of 20 percent thereafter, for a cervical spine disability, status post-cervical discectomy and fusion with osteoarthritis and spondylosis, is denied. FINDINGS OF FACT 1. For the appeal period prior to December 17, 2019, the Veteran's cervical spine disability is manifested by forward flexion of the cervical spine greater than 30 degrees and a combined range of motion greater than 170 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, IVDS with incapacitating episodes, and associated objective neurologic abnormalities. 2. For the appeal period prior to December 17, 2019, the Veteran's cervical spine disability is manifested by forward flexion of the cervical spine greater than 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS, or associated objective neurological abnormalities. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a cervical spine disability prior to December 17, 2019, and a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1985 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the Veteran's claim for additional development, and it now returns for further appellate review. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board stems from the Veteran's July 25, 2012 claim for an increased rating for his cervical spine disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's cervical spine disability is evaluated as 10 percent disabling prior to December 17, 2019 for the period on appeal, and 20 percent disabling thereafter, pursuant to DC 5242 pertinent to degenerative arthritis of the spine, which, in turn, is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a. In this regard, ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The General Rating Formula also includes the following notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The IVDS Rating Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Entitlement to a rating in excess of 10 percent for the period on appeal prior to December 17, 2019, and in excess of 20 percent thereafter, for a cervical spine disability, status post-cervical discectomy and fusion with osteoarthritis and spondylosis. As an initial matter, the Board notes that the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021; however, DC 5242 was not subject to the 2021 revisions. The Board further notes that the record does not show, and the Veteran does not contend, that he has IVDS of the cervical spine. In this regard, his treatment records are negative for such a diagnosis, and VA examinations conducted in May 2013 and December 2019 are negative for a diagnosis of IVDS related to the Veteran's service-connected spine disability. Consequently, the IVDS Rating Formula is inapplicable, and the recent amendments pursuant to Diagnostic Code 5243 are inapplicable. The Board further finds that ratings in excess of 10 percent prior to December 17, 2019, and in excess of 20 percent thereafter for the Veteran's cervical spine disability are not warranted under the General Rating Formula. In this regard, a May 2013 VA examination reflects the Veteran's report that he felt pressure and pain in his neck, especially when turning his head to the left. He further indicated that he had flare-ups of pain and stiffness two to three times a month, which made moving his neck difficult. The examiner noted that the reported associated features of the Veteran's spine disabilities included less movement than normal, weakened movement, excess fatigability, and pain on movement. Range of motion (ROM) testing revealed initial ROM of the cervical spine with forward flexion to 40 degrees but no objective evidence of painful motion upon forward flexion at the time of examination. Combined initial ROM was 265 degrees. There was no reduction in ROM following three repetitions. The examiner noted that the Veteran had functional loss and/or functional impairment of the back, resulting in less movement than normal; weakened movement; excess fatigability; pain on movement' disturbance of locomotion; and interference with sitting, standing, and/or weight-bearing. The examiner also noted that pain, weakness, and fatigability significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. The examiner noted that he was unable to determine additional limitation due to pain, weakness, fatigability, or incoordination. The examiner reasoned that such was not feasible to determine as limitation could not be replicated during the exam, noting that the Veteran, however, grimaced and groaned with all range of motion testing. Localized tenderness or pain to palpation for joints/soft tissue of the neck was noted, along with guarding or muscle spasm, but such did not result in abnormal gait or spinal contour. The Veteran did not have IVDS. The Veteran did not use an assistive device. Neurological examination revealed normal sensation, motor, strength, and reflexes, other than a subjective complaint of tingling of the middle and right finger of the left hand. However, as will be discussed, infra, such subjective complaints have been otherwise attributed and have not been found to constitute cervical radiculopathy. Variously dated VA and private treatment records reveal sharp shooting neck pain, which was worsened with flexion. The Veteran was also evaluated for subjective complaints of bilateral hand numbness and additional neurological symptoms of the left hand. However, private treatment records also show that, while the Veteran was evaluated for such symptoms over time, such were assessed as peripheral nerve issues and carpal tunnel syndrome, responsive to ultrasound guided steroid shot and not indicative of cervical radiculopathy. At a December 2019 VA examination, the Veteran reported pain in his neck, but he denied flare-ups of the cervical spine. On examination, the Veteran's ROM of the cervical spine was to 40 degrees of forward flexion, with a combined ROM of 170 degrees. There was objective evidence of pain on passive ROM, weight-bearing, and nonweight-bearing. There was additional loss of ROM following three repetitions, noted as a 5-degree loss of ROM for left lateral rotation. While the examination was not being conducted following repeated use over time, the examiner found that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability as a result of such factor. The Veteran did not have guarding or muscle spasms of the cervical spine. Muscle strength, reflex, and sensory examinations were normal, and there was no evidence of radiculopathy or other neurologic abnormalities related to the Veteran's cervical spine disability. The Veteran did not have IVDS or ankylosis. The Veteran did not use an assistive device. Of note, the examiner reviewed the August 2017 MRI report indicating multilevel cervical disc disease and mild canal stenosis, as well as the other evidence regarding the Veteran's subjective complaints of possible radicular symptoms, and noted no objective finding of radiculopathy or other neurological impairment due to the Veteran's cervical spine disorder. Based on the foregoing, the Board finds that, prior to December 17, 2019, the Veteran's cervical spine disability, status post-cervical discectomy and fusion with osteoarthritis and spondylosis, is manifested by forward flexion greater than 30 and a combined range of motion for the entire cervical spine greater than 170, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Furthermore, at no time prior to December 17, 2019, did the Veteran's cervical spine result in muscle spasms or guarding severe enough to result in abnormal gait or abnormal spine contour. Thus, a rating in excess of 10 percent for the Veteran's cervical spine disability under the General Rating Formula prior to December 17, 2019, is not warranted. The Board further finds the Board finds that, as of as of December 17, 2019, the Veteran's cervical spine disability is manifested by forward flexion greater than 15 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at the December 2019 VA examination, he had cervical spine flexion to 40 degrees, without additional loss of ROM on passive ROM, with weight-bearing or nonweight-bearing, on repetitive use, or repeated use over time, with no flare-ups. Thus, a rating in excess of 20 percent for the Veteran's cervical spine disability under the General Rating Formula as of December 17, 2019 is not warranted. The Board acknowledges the Veteran's argument that the 2013 VA examination was inadequate, as such failed to recognize his later confirmed diagnoses. However, the Board notes that the ROM measurements and objective findings made by the VA examiner appropriately evaluated the Veteran's cervical spine disability at that time for the purposes of applying the criteria of the General Rating Formula. The Board has also considered whether separate ratings are warranted for any objective neurologic abnormalities associated with the Veteran's cervical spine disability pursuant to Note (1) of the General Rating Formula. In this regard, while the Veteran reported occasional upper extremity numbness, tingling, or pain throughout the course of the appeal, such has been evaluated and treated as symptoms of separate peripheral nerve issues and carpal tunnel syndrome of the left hand. Furthermore, all objective examinations reflect that sensation, motor, strength, and reflexes were normal, and there was no evidence of radiculopathy or other neurologic abnormalities related to the Veteran's cervical spine disability. Moreover, the Veteran's reports of radiating pain are explicitly contemplated in his currently assigned rating under the General Rating Formula. Consequently, the Board finds that separate ratings for objective neurologic abnormalities associated with the Veteran's cervical spine disability are not warranted. In making its determination in the instant case, the Board acknowledges the Veteran's belief that his cervical spine disability is more severe than as reflected by the currently assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that he is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable throughout the periods on appeal. Therefore, assigning additional staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing determinations, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is inapplicable in such regard and the Veteran's claim for a higher rating must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.